Not only is the 2016 presidential election year madcap, unpredictable, topsy-turvy and stranger-than-fiction, but the issues the candidates are talking about are many and contentious. Not satisfied with illegal (or undocumented, if you prefer) immigration; an $18.5 trillion debt; scandals in the EPA, VA, IRS; America’s deteriorating position in the world, illustrated by looming collapses in Iraq and Afghanistan- both of which the present administration assured us would be bright spots in its legacy; and on and on – now there is a new issue, brought about by the untimely and unexpected death of Antonin Scalia, at the time of his death the longest-serving Justice on the current US Supreme Court.His death means a vacancy, and as everyone knows, the President gets to nominate someone to fill that vacancy, and to appoint that person with the advice and consent of the Senate. It does not say in the Constitution that the Senate must automatically approve whatever nominee the President makes – the Founders created a Senate, not a rubber stamp. If you want actual illustrations of how this has played out over recent years, look at the list of nominees to the Court rejected by the Senate: In 1968 (a presidential election year), President Johnson tried to elevate Justice Abe Fortas (an old Johnson crony) to be Chief Justice, and simultaneously named another old crony, Homer Thornberry, to the vacancy. The nominations were controversial, and for a variety of very good reasons, both were withdrawn less than four months later. President Nixon saw the Senate reject two of his nominations, Clement Haynsworth and G. Harrold Carswell; Nixon then named a more “moderate” choice, Harry Blackmun, who was unanimously confirmed;

Justice Antonin Scalia’s death leaves the Supreme Court without one of its most courageous and colorful conservative legal minds. First, he was a staunch defender of the separation of powers, which, like the American founders, Justice Scalia saw as a bulwark against government tyranny. It made no difference to Scalia which branch’s powers were being threatened by the encroachment of another branch. He relied upon the clear language of separation in the Constitution. The founders vested legislative power in Congress (Article I), executive power in the president (Article II), and judicial power in the Supreme Court (Article III). That unequivocal proclamation of separation is found in the first sentences of each article and Justice Scalia refused to allow it to be ignored. Examples of Scalia’s unrelenting defense of the separation of powers are numerous. But, perhaps, the most erudite were his arguments against the Ethics in Government Act, dubbed the “independent counsel act” in the 1988 case of Morrison v. Olson. There, Scalia, the sole dissenter from the majority, maintained that by passing the independent counsel legislation Congress “does deprive the president of substantial control over the prosecutory functions performed by the independent counsel … and it does substantially affect the balance of power.” The dissent is typical of Scalia. Most of the five-part opinion would be required reading in an upper-level political science class. However, the acerbic thrusts that characterize his style inevitably appear. He says that sometimes efforts to claim power from another branch “come before the Court clad, so to speak, in sheep’s clothing … But this wolf comes as a wolf.” In the end, Scalia stood upon what the founders put in the text of the Constitution: “I prefer to rely upon the judgment of the wise men who constructed our system, and of the people who approved it, and two centuries of history that have shown it to be sound.” Secondly, Scalia was a defender of classical federalism—the recognition that certain powers were intended by the framers to remain with state governments and not be denied to the states by any branch of the federal government, especially the judiciary.

The 2016 Iowa caucus is over, and the pundits are reading the entrails. On the Democrat side, Hillary Clinton eked out a win by almost the thinnest possible of margins. She polled 49.8% to 49.6% for Vermont Socialist Senator Bernie Sanders. She won five more delegates that Sanders, thanks to her “good luck” in going six-for-six in coin flips, which the Democrats use to break ties. Had Sanders won three of the flips, he would have won the race. Let’s see – Hillary Clinton has been one of the “most admired” people since 1992 – a “President-in-Waiting” whose ambition for the White House has not been a secret. She has behind her the biggest, richest, most powerful and most feared political machine the US since Tammany Hall. She has served as a US Senator, as Secretary of State, has been on the covers of a myriad of magazines. She has been the subject of countless newspaper articles, and is easily the best-known political figure in America today.

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